Opinion
Criminal Action No. SO4-04-0499 (R4).
April 3, 2008.
Richard K. Dukes, Georgetown, DE.
Dear Mr. Dukes:
On March 24, 2008, the Court received another Motion for Postconviction Relief. In same, you attack the modification of sentence entered by this Court on November 30, 2007. For the reasons listed below, your Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 is denied.
BACKGROUND
On August 24, 2004, you were sentenced to a period of five (5) years incarceration on the charge of possession of a deadly weapon by a person prohibited. To get out of jail, all you had to do was complete the Key program, because the balance of the sentence was suspended upon completion of the Level 5 Key program. You refused and therefore have served a much longer sentence than was necessary.
In the meantime, Motions for Modifications of Sentence and Postconviction Motions were denied.
Finally, on November 30, 2007, I reviewed your sentence and modified it because the only thing that was happening was that you were going to sit at Level 5 without any treatment. You were going to "max out" at Level 5. Therefore, I modified your sentence to five years suspended for the Level 4 Crest program (Residential Substance Abuse Treatment). Upon successful completion of that program, you would go to work release in order to work and save money.
Based upon the steady stream of correspondence since November 30, 2007, it appears that you have again refused to cooperate and participate in the Department of Correction programs. Therefore you still sit in jail or at the VOP Center.
You have filed a Motion for Postconviction Relief saying that you were denied representation, that you were over-sentenced on November 30, 2007, and finally a claim that the Court refuses to recognize that the Department of Correction is not honoring your sentence.
The Motion for Postconviction Relief is procedurally barred under Superior Court Criminal Rule 61(i)(1) in that your conviction took place on August 24, 2004. It also is barred under Superior Court Criminal Rule 61(i)(2) as it is a repetitive motion. Because the sentencing order of November 30, 2007 was a modification of your sentence and not the sentencing order on which you were convicted, your procedural vehicle for review was by way of appeal, not a Motion attacking your conviction.
Finally, and alternatively, it is denied on the merits. The Court attempted to modify a sentence to your benefit in order for you to get some substance abuse treatment at Level 4. You had previously refused treatment at Level 5. Your current problem is your failure to cooperate with the Department of Correction and participate in the programs, which has resulted in the Department of Correction placing you in a less-pleasant environment. The Court will not grant you relief because you have created your own headaches. As stated above, you could have been out of jail long ago, but unfortunately, you chose a path which has resulted in the probability that you will max out.
Your Motion for Modification is denied.
IT IS SO ORDERED.